PANKAJAKSHAN NAIR, AGED 78 YEARS, S/O.VELAYUDHAN PILLAI, ANANDA BHAVAN, OORUPOIKA CHERRY, AVANAVANCHERRY VILLAGE Vs. SHYLAJA AGED 31 YEARS, D/O.JANAMMA, S.K.V.MANDIRAM, KOTTANKARA CHERY, KOTTANKARA VILLAGE, KOLLAM TALUK

JUDGEMENT

(1.) The second defendant in OS.No.233/2000 on the file of the Family Court, Kollam is the appellant herein. The suit was filed by the first respondent herein for return of money and also gold ornaments, in the alternative, value of the gold ornaments and return of fridge or in the alternative, the value of the same which were said to have been entrusted to the defendants and utilized by them.

(2.) The case of the plaintiff in the petition was that the first defendant is the husband of the plaintiff and second defendant is her father-in-law. The marriage between the first defendant and the plaintiff was solemnized on 111.1996 at Mamoodu A.S. Auditorium as per Hindu custom. The plaintiff is a B.Sc. BEd degree holder. She has no capacity to procure children. She had no other physical, mental or sexual incapacity. She had made a matrimonial advertisement in the newspaper seeking for marital alliance stating these facts and fully knowing about these facts, the first defendant came forward to marry her. It is also alleged in the plaint that, at the time of marriage proposal itself, the first defendant informed that his procreation capacity is less and it can be rectified by treatment and when it was advised by doctor, he is not interested to undergo tests and take medicines for the same as he has no belief that only if children were born, there should be completeness in the purpose of marriage and he expressed his willingness and readiness to marry the plaintiff. She was made to believe that he is a Graduate in B.Sc and also Postgraduate diploma in computer application and he was working as a Computer Engineer in Saudi Arabia. In connection with the marriage, the plaintiff's relatives entrusted Rs.50,000.00 with the second defendant on the direction of the first defendant as share in her personal property and she was also given 54 sovereigns of gold ornaments and the relatives of the plaintiff's spent Rs.80,000.00 for marriage expenses. After the marriage, the plaintiff resided along with the first defendant and discharged her duties as his wife at his house till 28.1997. As per custom, the plaintiff's relatives went to the defendants' house for Nallavathil ceremony and they entrusted a Kelvinator fridge having a capacity of 165 litres worth Rs.13,500.00 and also Rs.10,000/- to the first defendant. Within one month from the marriage, the defendants appropriated the amount of Rs.50,000.00 entrusted with the second defendant and Rs.10,000.00 entrusted with the first defendant at the time of Nallavathil ceremony and 50 sovereigns of gold ornaments of the plaintiff. They sold the same and appropriated the amount. According to the plaintiff, they also treated her cruelly demanding more dowry at least to bring Rs.5 lakhs. When she expressed her inability to raise the amount, they physically and mentally tortured her and also questioned her chastity and for lack of procreation capacity due to her illicit connection with other persons. She tolerated these aspects taking into consideration the sufferings that will have to be faced by her family members. She was under the impression that the first defendant will go to Saudi Arabia in connection with his employment. But even after the marriage, he did not go for employment. When it was questioned, he informed her that he had only a small job in Saudi Arabia and the period is over and he had come to the native place and he is not a Computer Engineer and he had no possibility of going back and getting an employment. He had openly humiliated her in the presence of the second defendant and other relatives of the defendants. She has been abused causing mental agony. She was working as a teacher in Navabharath English Medium School, Attingal from 1.1.1997. The first defendant had grabbed the entire salary and spent the amount for himself. On 4.3.1997 she found that he was having some powder in small packets and when enquired he told that it was brown sugar and he was selling the same secretly to the students in the premises of University College, Thrivananthapuram. When she came to know about the illegal activities and when she was not amenable for the demand for Rs.5 lakhs, she was taken to her house and left there. The second defendant and his relatives supported the misdeeds of the first defendant. She filed OP(HMA).No.76/1999 against the first defendant for divorce. In spite of repeated demands made by her to the defendants to return the gold ornaments and money and fridge worth Rs.13,500.00 they were not prepared to return the same. So she was compelled to file the above suit for realization of the above articles and money.

(3.) Though notice was served on the first defendant, he remained absent. So he was declared ex parte. The second defendant, who is the appellant herein, entered appearance and filed written statement contending as follows: